Month October 2015

Lawsuits against patients, usually related to comments on online ratings and reviews websites, have met with varying results across jurisdictions nationwide. Before considering such a step, providers and their legal counsel should carefully consider cases in their state, such as the ones presented below, to determine if the facts of their case would support a cause of action recognized in the jurisdiction and would be likely to succeed.

Even if legal counsel believes that a potential suit has merit, physicians should consult with risk managers and other advisers regarding the public relations implications of such an effort. Providers may ultimately decide that a lawsuit would draw more attention to a negative review or video posted online than it would garner on its own and could perpetuate a reputation of the provider as “the doctor who sued her patient.” Possibly worse, the plaintiff may respond with a malpractice lawsuit.

Arizona: $12 Million Verdict Overturned

In a case initially decided in 2011, a pair of plastic surgeons sued a former patient for defamation and won a $12 million verdict. In the case, the patient suffered an infection after she received care from the surgeons.

She started a website dedicated to criticizing the two surgeons and questioned their credentials. The surgeons sued her in 2008, and the patient complied with a restraining order to delete the site. At the same time, she launched an extended online campaign criticizing the surgeons on various other websites, lodging professional board complaints, and attending public meetings, all with the intent of hurting the surgeons’ practice.

In suing the patient, the surgeons stated that her online comments and activities had their desired effect, causing such revenue loss as to effectively close their practice.

A jury awarded $11 million in actual damages and $1 million in punitive damages.

An Arizona court of appeals overturned the decision in 2015, writing that the award “shocks the conscience of this court” and finding that the plaintiffs offered insufficient evidence to justify such a large award. Although the appeals court nullified the amount of the award, the court agreed with the trial court that the clinicians were not entitled to summary judgment. The court ordered a new jury trial to determine whether the patient’s statements were actionable opinions or exaggerations that defamed the providers.

In a case decided in early 2013, the Minnesota Supreme Court declined to compel a patient’s son to remove online posts he had made criticizing a neurologist. The case arose from the neurologist’s examination of a patient in a hospital’s intensive care unit. Prior to the examination, the neurologist had never been involved in the patient’s care and had never met him.

After the exam, during which the patient’s family felt the neurologist’s behavior was “rude and insensitive,” the patient’s son posted on online physician ratings websites that the neurologist was “a real tool” who made insensitive comments about his father’s prognosis and was unsympathetic to concerns about his hospital gown being closed when asking him to get out of bed.

The neurologist sued the patient, claiming that 11 of the statements were defamatory. A trial court dismissed the claims, and the state supreme court upheld the dismissal, noting that many of the alleged statements were truthful and that the remaining statements were pure opinion and could not be considered defamatory under state law.

In a third case, the U.S. District Court for the Eastern District of Kentucky ruled that a physician could not pursue claims of defamation and tortious interference of business against a patient who posted several negative comments online.

The patient used online review sites to complain about poor results and a series of botched procedures.

The court dismissed the physician’s claims of defamation because it determined the patient’s statements to be protected opinions. Under Kentucky law, opinions may be considered defamatory only if they imply allegations of “undisclosed defamatory facts as the basis for the opinion,” the court said. All of the patient’s comments were found to be protected because they did not imply the existence of any undisclosed facts and were therefore not defamatory.

Because the statements were determined not to be defamatory, the court also dismissed the physician’s claim of tortious interference with business relations. Kentucky law requires proof of fraudulent representation, and the court said there was no evidence that the posts were knowingly false.

Dennis Laurion fired off his screed on a few rate-your-doctor websites in April 2010, along with some letters about what he saw as poor bedside manner by his father’s neurologist. He expected at most what he calls a “non-apology apology.”

“I really thought I’d receive something within a few days along the lines of ‘I’m sorry you thought I was rude, that was not my intent’ and that would be the end of it,” the 66-year-old Duluth retiree said. “I certainly did not expect to be sued.”

He was. Dr. David McKee’s defamation lawsuit was the beginning of a four-year legal battle that ended when the Minnesota Supreme Court ruled the doctor had no legal claim against Laurion because there was no proof that his comments were false or were capable of harming the doctor’s reputation.

A search on the business rating site Yelp for attorneys in San Francisco yields 5,681 results. Although Yelp and similar sites are probably best suited for restaurants and night clubs, many people use the site to review professionals. These reviews influence potential clients. The Lawyerist.com, a blog for legal professionals, recently polled a thousand people with the question: “When you need to find a specialty lawyer, how would you start your search?” Twenty-two percent said that they search Google or another search engine, 10 percent said that they “look elsewhere on the internet” and 2 percent said that they “ask on my favorite social network.”

Yelp is not the best indicator of an attorney’s ability—but most people using Yelp don’t know that. Most experiences with Yelp reveal that generally bad restaurants get bad reviews and good restaurants get good reviews. However, some places of business and now some attorneys either pay people to write good reviews or ask their dearest friends to rate their lawyer skills online. Thus, inexperienced lawyers who are savvy with social networking can have outstanding reviews and more seasoned, but less Internet-savvy attorneys can have bad reviews and not even know about it. In some instances, attorneys might be rated for things that have nothing to do with their legal abilities. There is really no way to tell why someone rated a particular attorney with high marks.

However, the troubling question is, what can a lawyer do to fight back when he or she receives a negative review on Yelp? According to some ethics experts: not much. In the Los Angeles County Bar Association’s Formal Ethics Opinion #525, the authors concluded that any public response to a negative review online must not “disclose confidential information,” must “not injure the former client in any matter involving the prior representation” and must be “proportionate and restrained.” The part about not disclosing confidential information can leave attorneys at a huge disadvantage when responding online.

Because opinions are protected by the First Amendment, clients are usually within their rights to log onto social media sites and trash their attorney, as long as they don’t knowingly make false statements—a hard standard to prove. Further complicating matters is the attorney-client privilege, which restricts the attorney as to what he or she can say to respond, if that requires divulging privileged information. For instance, imagine a client that hired a personal injury attorney with unreasonable expectations of receiving millions of dollars in settlement, or a client that ended up slighted in a divorce settlement because of his or her own bad behavior. The client could then go on Yelp, AVVO, LawyerRatingz, Angie’s List, etc., and tell the world that the attorney botched the case. In this situation most people would reasonably want to defend themselves against these accusations by pointing out the client’s own bad behavior. But as lawyers we cannot. So what can we do?

A professional can always sue over a bad review for defamation—but only if the statements made in the review were false. Even then, it’s probably not a good idea. The Associated Press recently reported about a Minneapolis Neurologist, David McKee, who sued a patient’s son for defamation after he wrote a scathing review, including disparaging comments allegedly said by the doctor to him and his family following his father’s stroke. McKee claims that the statements attributed to him were not true. This particular case has not been decided ( * ), but such suits are rarely successful. A study by Eric Goldman, a professor at Santa Clara University School of Law, revealed that of the 28 physicians who have recently filed similar suits, 16 of them were dismissed and six of them settled.

Defendant Dennis Laurion

Plaintiff Attorney Marshall Tanick

Plaintiff David McKee MD

The outcome of such suits can be devastating. In a July 13, 2009, article the San Francisco Chronicle reported about a California dentist, Yvonne Wong, who sued a patient and Yelp after the patient posted a negative review on Yelp’s site. Ultimately, Ms. Wong was ordered to pay more than $80,000 in attorney’s fees to her patient and Yelp. The judge ruled in that case that California’s stringent anti-SLAPP law could be applied because the patient had mentioned mercury fillings in her review, and thus the review furthered discussion of an issue of public interest.

Even Yelp’s spokeswoman Kristen Whisenand recommends against using the “nuclear option” and suing for a negative review. Why? Because it usually only brings more attention to the negative review—which is what the professional didn’t want in the first place. For example, in 2007, the New York Times reported about attorney John Henry Browne who sued the lawyer-ranking site Avvo alleging that his 5.7 (out of 10) ranking was damaging to his law practice. A federal judge held that the reviews were protected under the First Amendment right to express opinions and dismissed the case. The case brought more public notice to the negative Avvo reviews that the attorney wanted removed in the first place. A search of the same attorney now shows that he was able to raise that number to 6.6, so maybe he learned a thing or two since then. Or maybe he simply became more Internet-savvy and learned how to work the system.

The best option for attorneys is to check the ratings websites, and respond to the reviews in a friendly, proactive manner. For example, one San Francisco attorney with a rating of 2.5 stars on Yelp (out of 5 possible stars) responded to each and every one of his negative reviews in a polite manner that did not divulge privileged information. Although measures such as these may seem distasteful, the reality is that social media exists, people do check it when searching for an attorney, and the only thing attorneys can do is to stay on top of things.

Carol M. Langford has a practice in State Bar defense and professional licensing disputes in Walnut Creek. She teaches professional responsibility as an adjunct at U.C. Berkeley, Boalt Hall School of Law, and Hastings College of the Law. Additionally, Ms. Langford serves as an expert witness in cases involving complicated ethics issues and presents at conferences and symposiums across the state. She is a past Chair of the California Committee on Professional Responsibility and Conduct.

“Recent Trends In Defamation Law: From The Straigtforward Action In Ventura V. Kyle To Unmasking An Anonymous Poster In The ‘Fuboy’ Case”

David P. Twomey, Business Law Review, Volume 48

Published by Husson University Bangor, Maine, for the North Atlantic Regional Business Law Association

Internet and mobile platforms have radically changed how society consumes and shares news, opinions and other content. The Internet is now seen by some as the “Wild West” where anything goes and the preponderance of speech is either hyperbolic or acerbic, with speakers enabled to “sound off”, often with harsh and unbridled invective.

A carry-over effect exists to cable television and satellite radio. The First Amendment protects freedom of speech and the long enduring right to speak anonymously in a lawful manner. However, when vigorous criticism descends into defamation, constitutional protection is no longer available.

This paper presents, in a current context, a discussion of the elements and defenses in civil defamation cases. It then presents the special issues regarding online defamation cases including identifying anonymous posters of defamatory statements through nonjudicial and judicial actions. Further it identifies a framework for determining whether a statement is protected vigorous criticism or defamation, with true facts and pure opinions broadly protected and mixed opinions susceptible to its speaker bein unmasked in the pretrial defamation process. The paper concludes with brief admonishing for informed carefulness as we express our broadly protected First Amendment freedoms.

Defamation is an injurious false statement by one party about another to a third party. Slander is spoken defamation. Libel is a false publication by writing, printing, picture or other fixed representation to the eye, which exposes any person to hatred, contempt or ridicule, or which has a tendency to injure the individual in his or her occupation.

The elements of defamation are (1) the making of defamatory statement, (2) publication of the defamatory material; and (3) damages that result from the statement. In cases in which the victim is a public figure, such as a well-known entertainer, a professional athlete or political figure, another element is required – the element of malice, which means that the statement was made by the defendant with knowledge that it was false, or with reckless disregard for whether it was true or false.

For example, former wrestler and Governor of Minnesota, and a former Navy SEAL, Jesse Ventura sued Chris Kyle the author of the bestselling autobiography entitled American Sniper for defamation.

Kyle, also a former Navy SEAL, wrote that a character named “Scruff Face” holding court in a Coronado California bar said, “he hates America,” the SEALS “were killing men and women and children and murdering” and SEALS “deserve to lose a few”; at which point Kyle “laid him out”. While not naming Ventura in the book, Kyle confirmed on the O’Reilly Factor cable network television show and the Opie & Anthony satellite talk radio program that “Scruff Face” was Ventura.

Kyle was later killed by a troubled veteran, and his wife, as executor of his estate, was substituted as defendant.

The case, brought by public figure Jesse Ventura, boiled down to a credibility contest with several witnesses testifying that Ventura’s version of events was true, while several other witnesses testified that Kyle’s version of events was true.

The jury decided the case for Ventura, with the court concluding that in believing Ventura’s version of the facts, then Kyle’s writing and telling of the story of punching out Ventura was itself a basis for the jury to make a finding of actual malice.

On the defamation claim, the jury awarded $500,000 in damages. Some $1,345,477 in damages was assessed for unjust enrichment for the money made in defaming Ventura in the book American Sniper.

Truth is a complete defense to a defamation action and “true statements of fact however disparaging are not actionable. The First Amendment also broadly protects pure opinion from defamation claims.

In McKee v. Laurion, Dr. David McKee brought a defamation action against the son of a patient who posted statements regarding Dr. McKee on various “rate-your-doctor” websites after his father’s release from [ St. Luke’s Hospital in Duluth ].

The court reviewed the statements in question and found that the statements were substantially true, pointing out that the common law approach to falsity in the context of libel “overlooks minor inaccuracies”

Regarding a final statement published as follows: “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee’s is a real tool!!’”, the parties dispute whether this statement is protected opinion. The court stated that referring to someone as “a real tool” falls into the category of pure opinion because the term “real tool” cannot be reasonably interpreted as stating a fact and it cannot be proven true or false. The court concluded that it is an opinion amounting to “mere vituperation and abuse” or “rhetorical hyperbole” that cannot be the basis for a defamation action. Accordingly, truth is an absolute defense, and pure opinion cannot be basis for a defamation lawsuit.

A Minnesota doctor took offense when a patient’s son posted critical remarks about him on some rate-your-doctor websites, including a comment by a nurse who purportedly called the physician “a real tool.”

So Dr. David McKee had an unusually aggressive response. He sued the son for defamation. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial.

Dr. David McKee

“His reputation is at stake. He does not want to be a target for false and malicious remarks,” said his lawyer, Marshall Tanick.

Marshall Tanick, Esquire

McKee’s case highlights the tension that sometimes develops on websites such as Yelp and Angie’s List when the free speech rights of patients and their families clash with the rights of doctors, lawyers and other professionals to protect their good names.

“If You’ve Ever Complained OnlineAbout A Business, You May Want To Think Twice About It”

Librarian’s Muse

If you’ve ever complained online about a business, you may want to think twice about it. A contractor is suing a Virginia woman for criticizing his work on two major websites, and those bad reviews could cost her big money. Outside Fairfax County court Dec. 5, a lawyer for Jane Perez flipped through pictures allegedly showing botched home repairs. The photos include door hinges, trash allegedly left behind, and what are said to be strands of hair in a refinished floor. James Bacon, attorney for Perez, said, “I think we presented evidence sufficient to establish that the work was not completed, that he charged for work that had not been done, and that the workmanship was very poor.” Perez hired Christopher Dietz — a former high school classmate — in June 2011 to do cosmetic work on her townhouse.

Unhappy with the results, she gave him an “F” rating on Angie’s List.com, a consumer review website. On Yelp, she accused Dietz of damaging her home, billing her for work he didn’t do, and suggested he stole jewelry. She ended her scathing review with this advice, “Bottom line do not put yourself through this nightmare of a contractor.”

Dietz issued his own response, and then fired back with a $700,000 lawsuit for defamation. Dietz said, “There was no question in my mind that I did 150 percent professional job in her house.” He says Perez’s claims are all lies — lies that cost him $300,000 in lost business. Dietz said, “I believe that people should have the right to state how they feel, but when you state stuff as fact and it’s not fact or it’s not able to be supported there has to be some type of — for the lack of better words — punishment.”

Wednesday, Dietz was awarded his first victory. A judge ordered Perez to take down any allegations of theft and comments about legal action. Bacon said, “If we need to, we will appeal to make sure that people are not afraid to speak out.” The court still must decide whether there are grounds for a defamation case.

CBS News legal analyst Jack Ford explained defamation and how it relates to this case. On “CBS This Morning” he said, “Our constitutional right to free speech is not absolute. There are limitations on it. For instance, the classic one, you can’t falsely yell ‘Fire!’ in a crowded theater. … Because obviously, you can expose people to damage. What you can do is offer up is your opinion about things. As long as it’s clearly an opinion. Here’s what you can’t do. And this is where you get into defamation. You can’t make a false statement of fact that damages somebody’s reputation. So if I wanted to say, in a situation similar to this, I was just not at all happy with the work that my contractor did. That’s okay. That’s my opinion. But if i say, ‘I was not at all happy with the work that my contractor did, and by the way my contractor is an embezzler’ … or ‘he stole jewelry’ or even make the argument saying, ‘He damaged my house,’ now you’re making a statement of fact. The law also says, truth is an absolute defense. So if somebody did damage your house or somebody is an embezzler, then you’re OK. Even though it damages their reputation, as long as it’s true, it’s OK. The classic thing to remember is [defamation is] a false statement of fact that damages somebody’s reputation, as opposed to opinion.”

Ford added, “The Internet is still kind of the wild west. You know, tradition news organizations, we have editorial processes we follow. Reliable sources, fact checking, even though you have the right to do it, is it the right thing to do? If you’re going online, everybody uses this, goes and does research first before they buy stuff. Make sure you’re doing it in terms of a genuine opinion on your part. Here’s the other thing, don’t try and cloak your statement of fact and say, ‘It’s my … opinion that he damaged my house. It’s my opinion this person is a serial killer.’ Just because you say the word opinion, doesn’t mean it’s no longer a statement of fact. The thing to be careful about a statement of fact that’s false and damages their reputation.”

In a similar case, a Minnesota doctor took offense when a patient’s son posted critical remarks about him on some rate-your-doctor websites, including a comment by a nurse who purportedly called the physician “a real tool.” Dr. David McKee sued the son for defamation. The Duluth neurologist’s case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial. “His reputation is at stake. He does not want to be a target for false and malicious remarks,” said his lawyer, Marshall Tanick. McKee’s case highlights the tension that sometimes develops on websites such as Yelp and Angie’s List when the free speech rights of patients and their families clash with the rights of doctors, lawyers and other professionals to protect their good names.

Above, Marshall Tanick, attorney for Dr. David McKee, posed for photos in his Minneapolis office. McKee sued a patient’s son for defamation after critical remarks about him were posted on some rate-your-doctor websites. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial. “His reputation is at stake. He does not want to be a target for false and malicious remarks,” said Tanick.

So Dr. David McKee had an unusually aggressive response: He sued the son for defamation. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial.

“His reputation is at stake. He does not want to be a target for false and malicious remarks,” said his lawyer, Marshall Tanick.

McKee’s case highlights the tension that sometimes develops on websites such as Yelp and Angie’s List when the free speech rights of patients and their families clash with the rights of doctors, lawyers and other professionals to protect their good names.

“Patients now have power to affect their businesses in ways they never had,” said Eric Goldman, a professor at the Santa Clara University School of Law who studies the issue. Health care providers are “evolving how to deal with patient feedback, but they’re still in the process of learning how to do that.”

Most online reviews never provoke any response. And successful challenges to negative reviews are rare. Americans are legally entitled to express opinions, as long as they don’t knowingly make false statements.

But if the two sides contest basic facts, disputes can swiftly escalate.

At issue are six of Dennis Laurion’s statements, including the account of the nurse’s name calling. McKee and his attorney say the unnamed nurse doesn’t exist and that Laurion invented her to hide behind. Laurion maintains she is real, but he can’t recall her name.

In arguments before the court in September, Laurion attorney John Kelly said his client’s statements were legally protected opinion that conveyed dismay over how McKee treated Laurion’s father, who had suffered a stroke. The posts described a single visit that lasted 10 to 15 minutes.

The review said McKee seemed upset that after Laurion’s father had been moved from intensive care to a regular hospital room, the doctor “had to spend time finding out if you transferred or died.”

Laurion also complained that McKee treated them brusquely and was insensitive to the family’s concerns about the patient being seen in public in a gown that gaped open in the back.

In an interview, Kelly said nothing Laurion posted was defamatory — a false statement that harms a person’s reputation.

The court is expected to rule on the case sometime in the next few months.

Lawsuits over professional reviews are uncommon in part because most patients write positive reviews, Goldman said. And many states have passed laws that block the kind of lawsuits that are filed mainly to scare someone into shutting up on matters of public concern.

Known as “strategic lawsuits against public participation,” those complaints are often forbidden by broad laws that protect criticism even if it’s wrong, Goldman said.

When health care providers do sue, they rarely succeed. Of 28 such lawsuits that Goldman tracked, 16 had been dismissed and six settled. The others were pending.

One notable exception was a Maine case in which a chiropractor sued a former patient for postings on Facebook and websites that accused him of sexually assaulting her. The courts concluded she probably fabricated her story.

In June, a judge ruled that the chiropractor could legally attach $100,000 worth of the patient’s property to his claim as security pending further proceedings in the case, which remains open.

Yelp says reviewers are well within their rights to express opinions and relate their experiences.

Spokeswoman Kristen Whisenand says the company discourages professionals from using what she called the “nuclear option” of suing over a negative review. She said they rarely succeed and wind up drawing more attention to the review they dislike.

Angie Hicks, co-founder of Angie’s List, said people shouldn’t be afraid to post honest opinions about health care or other services.

“Everyone has the right to free speech,” Hicks said. “The key here is giving your honest opinion. Honesty is your best defense. Truth is your best defense.”

Jeff Hermes, director of the Citizens Media Law Project at Harvard University’s Berkman Center for Internet and Society, said people who want to post critical reviews should think about whether they can back up their statements. And they can strengthen their position by stating the facts on which their opinions are based.

Goldman advises reviewers to remember that they are still taking a risk anytime they criticize someone in a public forum.

“The reality is that we bet our house every time that we post content online,” Goldman said. “It’s a lousy answer from a societal standpoint because we need people to share their experiences so vendors will be punished or rewarded as appropriate.”